Killing Ourselves Depression as an Institutional, Workplace and Professionalism Problem

by Megan Seto

University of Ottawa

2

I. Introduction

The advent and persistence of the economic recession has ushered in a stressful, harsh

and anxious reality for the legal profession. Whatever the factors that contribute to this reality

may be – from the shortage of articling placements for law students, to the rising number of

billable hours – there is certainty to the fact that as a collective, the profession is confronting a

period of unhappy, and resultantly unhealthy times. In law, the culture of endurance and

workaholism is celebrated, and the need for greater “flexibility” and “balance” is discussed and

often dismissed as irreconcilable goals. With the timeliness of the economic recession and its

effects on our Canadian workforce and students, it is important to recognize the personal toll to

pursuing and practising law. In this essay, it is suggested that depression is not a personal failure

and most certainly, not a moral weakness; depression is an institutional, workplace and

professionalism problem. The illness is created and reinforced by shared environments, but

through collective intervention and action, the profession can move closer to preventing or

mitigating depression.

Mental illness within the profession is not a new problem. Lawyers are consistent and

frequent “winners” of undesirable honorifics such as the “most depressed workers” or “most

prone to succeeding in committing suicide.”1 However, the undercurrent of unhappiness and

anxiety should not be ignored or hidden away by “the many rueful jokes often told by lawyers

about lawyers.”2

This paper’s begins with an analysis on the Law Society of Upper Canada’s (“LSUC”)

Rules of Professional Conduct (“Rules”) as the Rules relate to depression or a related term or

phrase such as “mental instability.” Part III of this paper is devoted to discussing the science of

1 Patrick J. Schiltz, “On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical

Profession” (1999) 52 Vand L Rev 880. 2 Martin E P Seligman et al, “Why Lawyers are Unhappy” (2001) 23 Cardozo L Rev 52 [Seligman, “Unhappy”].

3

depression, including a survey explanation on how lawyers fare in comparison to the general

population. Part IV examines the role of the institutional agent, in particular law schools, to

creating and reinforcing an environment that exposes individuals to developing depression. This

section includes suggestions for preventative strategies that are effective, yet also practical. Part

V analyzes similar issues as they relate to law firms, including a “business case” for why mental

illness does have an impact, particularly in dollar terms, on a firm’s business. Lastly, Part VI is

devoted to examining depression as a professionalism challenge.

II. Rules of Professional Conduct – How Depression is Viewed

A. The Law Society of Upper Canada “Rules of Professional Conduct”

In the LSUC’s Rules, mental illness is indirectly addressed under Rule 2.01 dealing with

“competence.” Although the provision does not directly refer to mental illness or a related term,

the provision is relevant considering the rule deals with aspects related to functioning, which

may be impaired if an individual suffers from depression.3 Under the rule:

“Competent lawyer” means a lawyer who has and applies relevant skills,

attributes, and values in a manner appropriate to each matter undertaken on

behalf of a client including

[…]

(e) performing all functions conscientiously, diligently, and in a timely and

cost-effective manner,

(f) applying intellectual capacity, judgment, and deliberation to all functions,

(g) complying in letter and in spirit with the Rules of Professional Conduct,

(h) recognizing limitations in one’s ability to handle a matter or some aspect of

it, and taking steps accordingly to ensure that client is appropriately served,

(i) managing one’s practice effectively,

(j) pursuing appropriate professional development to maintain and enhance

legal knowledge and skills, and

(k) adapting to changing professional requirements, standards, techniques, and

practices.4

(Emphasis Added)

3 The Law Society of Upper Canada, Rules of Professional Conduct, Toronto: Law Society of Upper Canada, 2010,

Rule 2.01. See also American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders:

DSM-IV-TR (Washington: American Psychiatric Association, 2000) at 345. 4 Law Society of Upper Canada, supra note 3.

4

Under Rule 2.01’s commentary, lawyers are to be self-aware of problems, including an

obligation to be “alert to recognize[ing] any lack of competence for a particular task and the

disservice that would be done to the client by undertaking that task.”5

Rule 6.01 (3) (d) of the Rules does directly addresses mental illness. This rule creates a

positive obligation on other lawyers to report the “mental instability” of another lawyer:

A lawyer shall report to the Society, unless to do so would be unlawful or would

involve a breach of solicitor-client privilege,

[…]

(d) the mental instability of a licensee of such a serious nature that the

licensee’s clients are likely to be severely prejudiced, and

(e) any other situation where a licensee’s clients are likely to be severely

prejudiced.6

(Emphasis Added)

The commentary from this rule does reference Ontario Lawyers’ Assistance Program (“OLAP”),

a LSUC funded program devoted to assisting lawyers with mental health problems. Lawyers are

further recommended in the commentary to seek assistance based on instances of improper

conduct that may arise from emotional, mental, or family disturbances.7

B. Interpreting the Rules and Commentary

When interpreting the Rules and related commentary, it is not directly apparent as to who

has the obligation to acknowledge a mental illness or health problem. Based on the provisional

language from the applicable rules, and the content from the related commentary, there is greater

evidence to suggest that the individual lawyer has the obligation to recognize a problem.

Rule 6.01 (3)(d) creates a positive obligation on others to report a lawyer suffering from

“mental instability.” Yet, the provisional language implies that this option should be taken only

5 Ibid.

6 Ibid at Rule 6.01.

7 Ibid.

5

as a “last resort,” and that the standard for reporting must be of “serious nature that licensee’s

clients are likely to be severely prejudiced.” 8 Comparatively, the commentary for Rule 6.01

(3)(d) and Rule 2.01 detail an obligation on the affected lawyer to seek assistance or

acknowledgment of a problem. This means an individual lawyer has a positive obligation to

make a subjective evaluation to determine personal competency and possible presence of illness.

By making mental health detection a subjectively evaluated obligation, the Rules create a

risk of making depression an abstract problem. Those who are not affected are intuitively in a

passive position towards risk detection. This example is illustrated in a passage from a Kansas

Bar Association self-test, which examined attitudes toward depression and obligations to report:

It had been a good week for your clients. First, the judge granted summary

judgment to one client, based on the opposing lawyer’s failure to respond to

your request for admissions… But [the] situation [never] felt quite right.

You had been in the opposing lawyer’s office shortly after filing the

summary-judgment motion. He said that he had been depressed for months

since his wife had left him. You noticed a stack of unopened mail on his

desk and piles of disorganized papers throughout the office. You expressed

sympathy, but said that your client’s interests – make that you biggest

client’s interest – had to come first.9

Few lawyers are likely to take action against the affected lawyer because the situation “does not

feel quite right.”10 This means, a lawyer’s condition remains unreported or not addressed by

fellow colleagues. 11 Combined with the high standard for reporting, where the threshold is

“mental instability,” the Rules offer limited opportunity for intervention. Effectively, the Rules

promote the common belief that mental illness is an individual problem. Furthermore, the LSUC

8 Ibid. 9 Page Thead Pulliam, “Lawyer Depression: Taking a Closer Look at First-Time Ethics Offenders” (2008) 32 J

Legal Prof 302. 10 Ibid at 303. 11

Ibid.

6

Rules and commentaries assume that an affected lawyer has the capacity and ability to recognize

a problem. As it will be later discussed, this is not always possible due to cognitive distortion.

III. The Psychology of Depression and Stress

A. Science of Depression

Depression, clinically known as major depressive disorder (“MDD”), significantly

disturbs a person’s “entire psycho-biologic system, including the way the individual thinks, feels,

and behaves, as well as his vegetative body functions.”12 The disease is classified as a mood

disorder under the main tool used for identifying and treating those with depression, the

American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.13 A

depressed individual is more likely to ruminate over thoughts and feelings of worthlessness,

inappropriate guilt or regret, helplessness, hopelessness and hatred. Other symptoms include

insomnia, poor concentration and memory, withdrawal from social situations and thoughts of

death or suicide.14

Approximately 20% of the entire legal profession suffers from clinically significant

levels of substance abuse, depression, anxiety or some other form of psychopathology.15 In the

often-cited 1990 research from Johns Hopkins University, approximately 3% to 5% of the

general population suffers from MDD. Lawyers have statistically significant elevations of MDD,

with lawyers suffering at a rate of 3.6 times higher than non-lawyers who share key

12

Phyllis W. Beck & David Burns, “Anxiety and Depression in Law Students: Cognitive Intervention” (1979-80) 30

J Legal Educ 274. 13 American Psychiatric Association, supra note 3 at 345. 14

Ibid at 349. 15

John Starzynski, “Battling Addiction in the Workplace.” The Lawyers Weekly (4 March 2011).

7

socioeconomic traits.16 OLAP reported in their 2010 annual report that 42% of their total calls

were related to mental health issues, which included depression, bipolar disorder and anxiety 17

B. Challenges to Identifying Signs of Depression

Depression is easily concealed and has uneasily identified symptoms. 18 The most

significant challenge for the legal profession and law schools is identifying those affected. The

first challenge is recognizing that those affected prefer to remain silent. Like alcoholism,

depression is viewed commonly as a “moral weakness.”19 In adopting this prevailing view, the

legal community has been slow to recognize depression as a legitimate disease that requires

attention.20

Professor Jennifer Jolly-Ryan of Northern Kentucky University argues that law

remains the last workplace where mental health is still viewed with discrimination and stigma:

[i]ronically, the very people who are in the best position to increase the number of

lawyers who intimately understand the discrimination and health care laws in our

society impose some of the highest hurdles to employment and educational

opportunities. Lawyers stigmatize and often decline to hire other lawyers unless

they have a clean mental health history – free of disabilities, disorders, and

illnesses.21

Depression has the effect of making symptoms seem normal and even desirable. This

means an affected lawyer may not recognize the symptoms of depression. In a process referred to

as cognitive distortion, “an individual interprets stimuli that are neutral or mildly negative in an

unrealistically bleak fashion. This erroneous or inaccurate interpretation causes the individual to

feel sad, hopeless and anxious.”22 These symptoms are often mistakenly passed off as regular

16

Schiltz, supra note 1 at 874. 17

Ontario Lawyers’ Assistance Program, Annual Report, “2010 Annual Report” (2010)

<http://olap.ca/ANNUAL%20REPORT5202010_V2.pdf>. 18

Pulliam, supra note 9 at 299. 19

Todd Goren and Bethany Smith, “Depression as a Mitigating Factor in Lawyer Discipline” (2000-2001) 14 Geo J

Legal Ethics 1082. 20

Ibid. 21

Jennifer Jolly-Ryan, “The Last Taboo: Breaking Law Students with Mental Illnesses and Disabilities Out of the

Stigma Straitjacket” (2010) 79 UMKC L Rev 123. 22

Beck, supra note 12 at 273.

8

signs of stress.23 The depressed individual confuses the symptoms of depression – negative or

critical judgments about themself – with their own identity.24

In addition to a negative self-view, depression causes an increased pessimistic view of the

world. Pessimism is defined by a tendency to interpret the causes of negative events in stable,

global and internal ways.25 They view the world from a prudent perspective that requires caution,

skepticism and higher sense of “reality-appreciation.”26 Pessimism is a highly desirable and

adaptive trait for lawyers because of an ability to conceive problems in any given situation.

However, pessimism is a problem trait because it cannot be easily turned off.

Resultantly, depression symptoms are not only difficult to identify, but can be considered

normal and even beneficial. However, as the science of depression suggests, depression is most

certainly not a personal failure. The illness is the result of a number of complex, inter-related

biological and environmental conditions.

IV. Law Schools – The First Line of Defense

A. Personality Traits as a Risk Factor Depression

The most common explanation for the poor health of lawyers is the suggestion that the

law profession draws its members from a subset of unhealthy and unhappy people. However, this

explanation over simplifies the problem by underestimating the collective forces to creating, or at

the very least, contributing to maladaptive behavioural patterns which lead to depression. It is not

enough to suggest that the demand of the law program is the causal factor for depression, since

the problem appears unique to law school. One study showed that law students, when compared

to medical students, had higher levels of stress and stress symptoms despite the similarly

23

Donalee Moulton, “Understanding Burnout and Fixing It”, The Bottom Line (April 2011) 24

Beck, supra note 12 at 275. 25 Seligman, “Unhappy”, supra note 2 at 55. 26

Ibid at 56.

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demanding programs.27

While the notion that law draws the unhealthy may explain part of the

problem, there is no denying that students are very much creatures of their collective

environment, which in some cases is neither happy or healthy.

1. Pessimistic Explanatory Style

While pessimism is a symptom of depression, the trait is not in itself dysfunctional. The

problem with pessimism is its pervasiveness in the legal profession and the consequent mental

health effects. We can attribute this to the fact that those with pessimistic personalities are drawn

to the profession, and because pessimism is taught in law school through a process known as

Pessimistic Explanatory Style (“PES”). As discussed in the previous section, pessimists view bad

events as pervasive, permanent and uncontrollable. Comparatively, optimistic counterparts view

the world as local, temporary and changeable.28

Pessimists actually do better at law. They not only outperform their optimistic peers, but

they outperform in measurements of achievement, such as grade point average.29 Legal educators

recognize that skepticism becomes a virtue and have tried to incorporate this specific form of

thinking to the law school curriculum. Students are graded and taught to “see every conceivable

snare and catastrophe that might occur in any transaction.”30

Since the trait cannot be “turned

off,” the compartmentalization between work thought patterns and private life thought patterns is

often difficult to separate.31 For students who are not as able to develop this skill, the initial

27

Todd David Peterson and Elizabeth Waters Peterson, “Stemming the Tide of Law Student Depression: What Law

Schools Need to Learn from the Science of Positive Psychology” (2009) 2 Yale Journal of Health Policy, Law and

Ethics 365 28

Martin E. P. Seligman, Authentic Happiness: Using the New Positive Psychology to Realize Your Potential for

Lasting Fulfillment (New York: The Free Press, 2002) at 178 [Seligman, “Authentic”]. 29

Seligman, “Unhappy”, supra note 2 at 56. 30

Veronica Henderson, “Building on Strong Foundations: Rethinking Legal Education with a View to Improving

Curricular Quality 29 Dalhousie L J 496. 31

Ibid.

10

enthusiasm of law school is often supplanted by feelings of depression, which disturbingly

persists throughout law school.32

2. The Role of Self-Esteem

Lack of self-esteem is another theory suggested as a cause for depression. Students prior

to law school have a history of receiving concrete forms of validation for their achievements that

is most commonly in the form of grades or awards. After internalizing these positive emotions,

students begin and continue to invest time and effort to be acknowledged. However, a

“perfection/failure” trap is created by the time students enter law school.33

The mandatory “B”

curve in law school triggers these issues and the high competition for jobs exacerbates them.

Professor Gerald Hess, founder and co-director for the Institute for Law Teaching and Leaning,

stated that grades and class rank serve as a “significant gatekeeper to the reward system during

and after law school – law review membership, research or teacher-assistant positions,

internships and jobs.”34 Competition creates stress, fear, anxiety and “a profound loss of self-

esteem.”35 Such environment fosters an unhealthy psyche that encourages depression as students

feel inadequate and incapable.

B. Creating and Reinforcing an Unhappy Environment - The Undermining Effect

Law students remain vulnerable to developing depression during law school, even where

there is no evidence to suggest a pre-existing risk. In a seminal motivational study by Professor

Kennon M. Sheldon and author Lawrence S. Krieger, pre-law students reported that they felt

happier, healthier and had more intrinsic pro-social values. At the end of their first year in law

school the same students reported large reductions of life satisfaction and overall social well

32 Ibid. 33

Rachel Long, “Reasons Why Attorneys and Other High Achievers Might Suffer from Depression” Online:

Lawyers With Depression <http://www.lawyerswithdepression.com/lawyerssodepressed.asp>. 34 Peterson, supra note 28 at 380. 35

Ibid.

11

being.36 Students reported large increases in depression and other illnesses such as anxiety. This

statistical shift has been referred to as the “undermining effect,” where initial positive emotions

are eroded or usurped.37 Gradually, superficial awards and extrinsic values define law school

success and worth.38 The Honorable Judge Patrick Schiltz of the U.S. District Court makes the

argument that by coveting image-based awards, such as prestige and status, young law students

are setting the foundation for later discontent as associates.39 This means how we teach and train

law students invariably impacts the profession as a whole.

C. Intervention and Action Required to Prevent Depression

1. Developing and Encouraging Learned Optimism

There are practical based solutions available to law schools to addressing and preventing

depression. For the pessimism problem, the immediate antidote is to inject optimism in the law

school curriculum. Optimism is the ability to dispute recurrent catastrophic thoughts effectively,

and much like pessimism, this trait can be learned through a process known as the “disputing

technique.” 40 The goal is to teach law students and lawyers the ability to control negative

emotions by identifying negative thoughts and then reinterpret them as though a friend had

spoken them.41 By reinterpreting who is speaking, the depressed individual is more likely to use

skills such as positive reinforcement and encouragement.

36

Kennon M. Sheldon & Lawrence S. Krieger, “Does Legal Education Have Undermining Effects on Law

Students? Evaluating Changes in Motivation, Values and Well-Being” (2004) 22 Behav Sci & L 263. 37

Ibid at 272. 38

Ibid. 39

Schiltz, supra note 1 at 921. 40

Seligman, “Unhappy”, supra note 1 at 58. 41

Ibid.

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2. The Role of the Faculty Friend

When students do experience an emotional crisis, they often turn to a member of the

administration, known as a “faculty-friend.” The challenge for law schools is training ill

prepared faculty-friends to responding to an emotional crisis.42 Commonly, staff members report

feelings of discomfort and inadequacy when approached by a student with an emotional problem.

The instinct is to divest from the situation by referring the student to professional help.43 While

the faculty-friend may genuinely feel that this is the best solution, the student mistakenly

interprets the recommendation as disinterest. The faculty-friend’s response can be harmful since

the student feels ignored and discouraged after soliciting help.44 Studies suggest that this result is

counterproductive since untrained faculty-friends provide helpful therapeutic intervention and

can produce the same results as professional forms of help.45

Instead, a faculty-friend should determine the nature and intensity of the student’s

emotional problem.46 Much like working with a client, the role of the faculty-friend is to identify

the kind of problem (depression, anxiety, and stress), and then establish the severity. In some

cases, it is important to recognize that the faculty-friend may not be helpful. Depending on the

severity of the mood problem, professional help may be the most appropriate decision. However,

the faculty-friend as a person of authority must convey this conclusion with sincerity rather than

divest from the situation.47 For law schools, training faculty-friends is an effective, standardized

and practical solution to addressing student depression.

42

Beck, supra note 12 at 271. 43

Peterson, supra note 28 at 360. 44

Beck, supra note 12 at 271. 45

Ibid. 46

Ibid at 278. 47

Ibid.

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V. Practising Law – Breaking the Culture of Endurance and Workaholism

A. The Business Case for Addressing Depression

Self-reports of depression from lawyers range from 3.5% to 37%, depending on

measurements used.48

Beyond just mere statistics, lawyers and firms need to recognize that

depression is a business problem in spite of prevailing views that mental illness is a personal one.

The illness has the effect of limiting a lawyer’s ability to distribute its most valuable asset –

talent and knowledge.

This position has been supported by the LSUC, most evidently in the LSUC’s Practice

Management Guidelines, where the directive states that lawyers, with their talent and knowledge,

determine the “quantity and quality of legal service” as a representative of the firm. Meaning, the

preservation, enhancement, and investment in lawyers’ well being is a “necessary component of

a risk management plan and a key factor in the business success of a law practice.”49

Well being does have a dollar term impact on a firm’s business. In a 2006 study titled

“Flexibility in Canadian Law Firms,” it was found that the average cost of an associate’s

departure is $315,000.50 More alarming, is the costs associated with stress-related problems. It is

estimated that about 20% of a firm’s payroll is devoted to resources to address absenteeism,

employee turnover, disability leaves, counseling, medical costs and accidents.51 These totals do

not account for costs associated with conduct related to negligence or other forms of liabilities

related to delivering client services. A prudent business should recognize that the culture of

48

Amiram Elwork, Stress Management for Lawyers: How to Increase Personal & Professional Satisfaction in the

Law (North Wales: Vorkell Group, 2007) at 235. 49

The Law Society of Upper Canada, Practice Management Guidelines, Toronto: Law Society of Upper Canada,

2010, ch. 8.4. 50

Catalyst, The Catalyst Series on Flexibility in Canadian Law Firms, “Beyond Reasonable Doubt: Building the

Case for Flexibility” (2005) < http://www.catalyst.org/publication/38/beyond-a-reasonable-doubt-building-the-

business-case-for-flexibility>. 51

Donaless Moulton, “Destressing your law office in these stressful times.” The Lawyers Weekly (29 January

2010).

14

silence and fear is not only problematic for the individual lawyer, but has the effect of putting the

firm in a vulnerable business position. To mitigate this risk, the firm should identify risk factors.

B. Risk Factors for Depression in the Practice of Law

1. Internalizing law as a win-loss game

The adversarial process, which is the system of Canadian law, is a classic example of a

zero-sum game: one side’s gain occurs with the other side’s loss. 52 Disputes are fuelled by

negative emotions like anger, anxiety, and sadness. 53 In a job where zero-sum situations are

pervasive, negative emotions become part of the job itself creating a protracted period of

exposure to the development of depression or other associated illnesses.

Lawyers complain that the success of a lawyer is based on the number of hours billed,

which is often correlated based on successes in “winning” the game.54 To succeed, lawyers are

more adversarial when dealing with other lawyers, which in turn, spurs issues related to incivility

and isolation from others. 55 However, this responsive behaviour does not serve an effective

purpose because it is a “single-minded drive towards winning the competition … [which] will

make […] young lawyers not only less useful citizens … but also less good as lawyers, less

sympathetic to other people’s troubles, and less valuable to their clients.”56 This means, law

firms gain little value in using negative emotions to deliver client services. This suggestion is

part of a subset of evidence that proves, if proof was needed, that workplace environment does

play a role in contributing to depression.

52

Seligman, “Unhappy”, supra note 2 at 60. 53

Seligman, “Authentic”, supra note 29 at 178. 54 Schiltz, supra note 1 at 888. 55 Seligman, “Unhappy”, supra note 2 at 60. 56 Ibid at 61.

15

C. Creating and Reinforcing an Unhappy Environment – Low Decision Latitude

The lack of decision-making latitude by lawyers practising in large firms is often cited as

a source for unhappiness. Decision latitude refers to the number of choices one has or, believes

one has.57 In recent years, young associates are confronting a situation of low decision latitude,

where they have little control over work, limited contact with superiors, and limited client

contact.58 More often, high-pressure demand combined with low decision latitude, creates a risk

of depression, poor morale and poor physical health.59 In the case of large private firms, the

response has been address associate dissatisfaction through compensation of wages or “retention

bonuses.”60 Yet, the problem with dissatisfaction does not appear to be inadequate compensation,

since money has little effect to the underlying issue of control and decision-making. The health

effects for those working in a high-pressure and low control environment are not surprising –

there are higher rates of both heart disease and divorce. 61 This fact is not lost on young

associates, with nearly 62% of females and 47% of males suggesting that they would leave their

firm in five years or less.62 A loss of control, like job dissatisfaction to which are closely related,

demonstrates the relationship between well being and cost to a firm’s business. This scenario is

particularly true when a firm needs to account for the cost of associate departure.

57

Ibid at 56. 58

Ibid at 61. 59

Ibid. 60

Seligman, “Unhappy”, supra note 2 at 57. 61

Ibid. 62

Catalyst, supra note 51.

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D. Intervention and Action Required to Prevent Depression

1. Encouraging Cooperative Litigation

A growing number of law schools and law firms are now recognizing alternative models

to litigation; in particular, using dispute resolution forums such as mediation and arbitration. This

is part of a recognition that more collaborative or non-zero-sum situations are better for business

and health.63 After all, most lawyers are not litigators.64 In scenarios where the engagement is not

a zero-sum scenario, alternative dispute resolution should be encouraged. Instead of behaving as

an untrammeled advocate, the lawyer’s role is to encourage “normative-order” by serving as a

lawyer-statesman in deal making.65 Evidence suggests that positive emotions from “cooperative”

alternatives to litigation solicit feelings of joy, amusement, and interest.

2. Increase Sense of Control

Law firms should consider solutions that offer lawyers more personal control in day-to-

day work.66 The most effective and practical way to address low morale or depression is to build

greater intrinsic value, rather than provide just extrinsic rewards. Client contact, mentorship and

a voice in management are more effective in conveying value and worth than large bonuses or

expensive dinners. 67 To achieve this solution, firms should learn and recognize associates’

strength and use that knowledge to shape a work environment.68 Prevention strategies in the law

firm context often relate to matters that first emerge in a law school. In cases where there is low

decision latitude, self-esteem and the “undermining effect” emerge during the practice of law.

This is further evidence that prevention strategies need to occur on a continuum basis.

63

Seligman, “Unhappy”, supra note 2 at 60. 64 Ibid at 63. 65 Ibid. 66

Ibid at 58. 67 Ibid. 68 Ibid at 60.

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VI. Depression as a Professionalism Challenge

A. The Effect of Depression on Our Current System

In our analysis thus far, the focus has been primarily on the various risk factors to suggest

causes or conditions that reinforce depression. The remaining part of this paper takes a survey

examination on why depression is a professionalism challenge as much as a law school and law

firm problem.

For the profession, our current model has the effect of attracting a greater number of

disciplinary problems with statistics suggesting that 40% to 75% of disciplinary actions are

against lawyers who are chemically dependent or mentally ill.69

More worrisome is the

suggestion that the deteriorating mental health of lawyers could affect the self-regulation of

lawyers in Canada. John Sopinka, former Justice of the Supreme Court of Canada, suggested that

our current model restrains the profession’s ability to grow. He states that signs of this

impending problem include a lack of tolerance for pro bono and community work, limited time

to train and develop young lawyers, no time to read outside the law, and increases in disciplinary

problems.70

Justice Sopinka’s argument is alarming, but valid, considering this paper’s analysis

on the systemic and continuum nature of risk scenarios that cause or encourage depression.

B. Ethic Offenders and Discipline

An untreated lawyer is more dangerous to the public than someone who has recognized a

problem and sought professional help.71 Organizers, coordinators, funding bodies and directors

from Lawyers Assistance Programs across Canada have in recent years examined the link

between mental illness and disciplinary proceedings. The “Ontario Report,” revealed that drugs,

69

Craig Cormack, “Lawyers turn to meditation to fight stress and improve performance.” Canadian Lawyer

Magazine (March 2009). 70

Unknown, “Stop whining about hard work, Greenspan tells lawyers.” The Lawyers Weekly (6 September 1991). 71 Pulliam, supra note 9 at 293.

18

alcohol, or “psychiatric” illness was present in nearly 50% of the 172 cases categorized as

serious disciplinary proceedings.72 Their findings are based on examining the LSUC’s Discipline

Digest between the periods of 1992-1995. The table results have been reproduced in this paper as

an appendix.73

The report does reflect an ongoing criticism that regulators and law societies often view

and address all forms of mental illness as one large issue rather than recognize the differences

between the various forms of illness.74 This means the data lacks specificity as to whether the

disciplined lawyers were affected by the illness of depression per se.

C. Challenges Related to Discipline – Depression as a Mitigating Factor

The issue of whether mental illness should be accepted as a mitigating factor has been a

contentious matter for the profession. This debate is more developed in the United States, but in

Ontario, depression is generally accepted as a mitigating factor in disciplinary cases as evident in

the Ontario Report. There is disagreement over discipline for “middle range” misconduct

complaints, or permitted-to-resign and suspension cases.75 One specific point of disagreement is

whether suspension is appropriate given that, by the time lawyers have reached the stage of a

serious disciplinary hearing they have already “gone too far in the system” to warrant leniency.76

To allow lawyers to otherwise return to the profession would be violation to the public duty

owed by regulatory agencies. There remains no consensus to this issue, but the debate does

demonstrate the complexity of the issue and unenviable position of professional regulators in

addressing mental illness.

72

Canadian Bar Association, “Addiction and Psychiatric Impairment of Lawyers and Judges” <

http://www.lpac.ca/main/Courses_01/alcohol_03.aspx>. 73

Ibid. 74

Pulliam, supra note 9 at 299. 75 Canadian Bar Association, supra note 102. 76

Goren, supra note 28 at 1097.

19

D. The Next Step for Regulators

The next step for regulators is to consider how to reverse the current trend so that mental

illness is not overly represented in disciplinary cases. Currently, it is not foreseeable that the

LSUC will create a working group aimed at specifically addressing the issue of depression. The

Rules as they relate to depression, are likely to remain the same.

Governor David Johnston spoke to the Canadian Bar Association about his vision for the

profession by 2017.77 He spoke about the possibility of forced government regulation and the

factors that would bring about that result. Johnston referred to the importance of maintaining the

public’s trust. As our study has attempted to demonstrate, once a lawyer has been disciplined

trust with the public is invariably broken. The affected lawyer is likely not honest with

themselves, their firm or professional colleagues. If the profession is to truly accept Governor

General Johnston’s speech about the risk of losing self-regulation, then we need to examine the

root of what is causing the disproportionate number of disciplinary cases involving mental illness

and a task force would be a place to start.

VI. CONCLUSION

In this essay, it is suggested that depression is not a personal failure and most certainly,

not a moral weakness; depression is an institutional, workplace and professionalism problem.

The illness is created and reinforced by occupational hazards and shared environments. This

essay has outlined the science of depression and why the illness is not the result of a personal

weakness, but a combination of biological, workplace, professional and environmental factors.

Also outlined is the role of law schools in creating an environment that reinforces or causes

symptoms of depression. Similarly, this analysis was conducted with regards to law firms.

77

David Johnston, “Canadian Bar Association’s Canadian Legal Conference – The Legal Profession in a Smart and

Caring Nation: A Vision for 2017”, (Speech delivered at the Canadian Bar Association’s Canadian Legal

Conference (2011) in Halifax, 14 August 2011), [http://www.gg.ca/document.aspx?id=14195]

20

Lastly, this paper examined how mental illness is disproportionally represented in disciplinary

cases, making depression a professional issue. This paper suggests that to effectively implement

any of the preventative strategies that has been suggested, the profession needs to accept the fact

that depression is an endemic hazard of our profession and will likely occur in a large number of

lawyers in the lifespan of their legal careers. This writer remains optimistic that in the face of the

economic recession and with the risk of losing self-regulation, the time is now to reexamine how

the profession addresses the problem of depression.

21

APPENDIX

From Canadian Bar Association “Addiction and Psychiatric Impairment of Lawyers and Judges”

BIBLIOGRAPHY

SECONDARY MATERIAL

American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders:

DSM-IV-TR (Washington: American Psychiatric Association, 2000).

Elwork, Amiram. Stress Management for Lawyers: How to Increase Personal & Professional

Satisfaction in the Law (North Wales: Vorkell Group, 2007).

Seligman, Martin E. P. Authentic Happiness: Using the New Positive Psychology to Realize

Your Potential for Lasting Fulfillment (New York: The Free Press, 2002).

SECONDARY MATERIAL: ARTICLES

Beck, Phyllis W. & David Burns, “Anxiety and Depression in Law Students: Cognitive

Intervention” (1979-80) 30 J Legal Educ 270.

Canadian Bar Association. “Addiction and Psychiatric Impairment of Lawyers and Judges” <

http://www.lpac.ca/main/Courses_01/alcohol_03.aspx>.

Cormack, Craig. “Lawyers turn to meditation to fight stress and improve performance.”

Canadian Lawyer Magazine (March 2009).

Goren, Todd and Bethany Smith. “Depression as a Mitigating Factor in Lawyer Discipline”

(2000-2001) 14 Geo J Legal Ethics 1081.

Henderson, Veronica. “Building on Strong Foundations: Rethinking Legal Education with a

View to Improving Curricular Quality” 29 Dalhousie L J 496.

Jolly-Ryan, Jennifer. “The Last Taboo: Breaking Law Students with Mental Illnesses and

Disabilities Out of the Stigma Straitjacket” (2010) 79 UMKC L Rev 123.

Long, Rachel. “Reasons Why Attorneys and Other High Achievers Might Suffer from

Depression” Online: Lawyers With Depression

<http://www.lawyerswithdepression.com/lawyerssodepressed.asp>.

Moulton, Donaless. “Destressing your law office in these stressful times.” The Lawyers Weekly

(29 January 2010).

Moulton, Donalee. “Understanding Burnout and Fixing It.” The Bottom Line (April 2011).

Peterson, Todd David & Elizabeth Waters Peterson. “Stemming the Tide of Law Student

Depression: What Law Schools Need to Learn from the Science of Positive Psychology”

(2009) 2 Yale Journal of Health Policy, Law and Ethics 357.

Pulliam, Page Thead. “Lawyer Depression: Taking a Closer Look at First-Time Ethics

Offenders” (2008) 32 J Legal Prof 289.

Schiltz, Patrick J. “On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy,

and Unethical Profession” (1999) 52 Vand L Rev 871.

Sheldon, Kennon M. & Lawrence S. Krieger, “Does Legal Education have Undermining Effects

on Law Students? Evaluating Changes in Motivation, Values and Well-Being” (2004) 22

Behav Sci & L 263.

Seligman, Martin E P et al. “Why Lawyers are Unhappy” (2001) 23 Cardozo L Rev 50.

Starzynski, John. “Battling Addiction in the Workplace.” The Lawyers Weekly (4 March 2011).

Unknown. “Stop whining about hard work, Greenspan tells lawyers.” The Lawyers Weekly (6

September 1991).

23

OTHER MATERIALS

Catalyst. The Catalyst Series on Flexibility in Canadian Law Firms, “Beyond Reasonable Doubt:

Building the Case for Flexibility” (2005) <

http://www.catalyst.org/publication/38/beyond-a-reasonable-doubt-building-the-business-

case-for-flexibility>.

Johnston, David. “Canadian Bar Association’s Canadian Legal Conference – The Legal

Profession in a Smart and Caring Nation: A Vision for 2017”, (Speech delivered at the

Canadian Bar Association’s Canadian Legal Conference (2011) in Halifax, 14 August

2011), [http://www.gg.ca/document.aspx?id=14195].

Ontario Lawyers’ Assistance Program, Annual Report, “2010 Annual Report” (2010)

<http://olap.ca/ANNUAL%20REPORT5202010_V2.pdf>.

The Law Society of Upper Canada, Rules of Professional Conduct, Toronto: Law Society of

Upper Canada, 2010.

The Law Society of Upper Canada, Practice Management Guidelines, Toronto: Law Society of

Upper Canada, 2010.